ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MATTHEW JON McGOVERN STEVE CARTER
Louisville, Kentucky Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
RICHARD H. EDWARDS, )
vs. ) No. 31A01-0103-CR-113
STATE OF INDIANA, )
APPEAL FROM THE HARRISON SUPERIOR COURT
The Honorable Roger D. Davis, Judge
Cause No. 31D01-0007-DF-560
May 21, 2002
OPINION ON REHEARING - FOR PUBLICATION
The State petitions for rehearing
See footnote of our opinion in
Edwards v. State, 762
N.E.2d 128 (Ind. Ct. App. 2001).
See footnote We grant the State's petition for
the limited purpose of addressing the States arguments that we improperly considered the
absence of exigent circumstances to justify the States warrantless search of a vehicle
and that we misapplied the search incident to an arrest exception to the
warrant requirement. We reaffirm our original decision.
Police arrested Edwards after a convenience store employee reported Edwards had stolen cigarettes.
Police saw a truck that matched the description of Edwards truck and
watched it pull into a gas station. Edwards left the truck and
started to pump gas into it. Police arrested him and impounded the
truck. They saw an unopened garbage bag in the bed of the
truck. They opened the bag and found cigarettes inside. We affirmed
the admission into evidence of the cigarettes on the ground the search was
valid under the plain view exception,See footnote but determined the search was not a
proper inventory search, that the police lacked probable cause for a warrantless search
of the vehicle, and the search was not a valid search incident to
The State first asserts we improperly required a showing of exigent circumstances even
though the automobile exception to the Fourth Amendment warrant requirement contains no such
exception. Where a search and seizure is effected without a search warrant,
the State bears the burden of proving the search falls within an exception
to the warrant requirement. The existence of exigent circumstances is one recognized
Sweeney v. State, 704 N.E.2d 86, 107 (Ind. 1998), cert. denied
sub nom Sweeney v. Indiana, 527 U.S. 1035 (1999).
The State correctly notes that the automobile exception has no separate exigency requirement
because if there is probable cause to believe the automobile contains the fruit
or instrumentality of a crime, the inherent mobility of the automobile justifies a
warrantless search. (Pet. for Rehearing at 4, quoting Sebastian v. State, 726
N.E.2d 827, 830 (Ind. Ct. App. 2000), trans. denied 735 N.E.2d 235 (Ind.
We remind the State that we explicitly noted that rule in our Edwards
decision: When probable cause exists to believe that a vehicle contains evidence
of a crime, a warrantless search of the vehicle does not violate the
Fourth Amendment because of the exigent circumstances arising out of the likely disappearance
of the vehicle. 762 N.E.2d at 134 (emphasis supplied), citing California v.
Acevedo, 500 U.S. 565, 569 (1991).
However, we went on to discuss the absence of exigent circumstances in Edwards
case because the police impounded Edwards vehicle. Edwards impounded vehicle was no
longer inherently mobile and therefore there was no longer a concern with its
likely disappearance. His vehicle was no longer within the automobile exception and
the State was obliged to prove an exception to the warrant requirement.
See, e.g., Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995) (applying the
exigent circumstances analysis to the search of an impounded car). We therefore
reject the States contention that our application of the exigent circumstances analysis is
flatly contrary to United States Supreme Court precedent. (Pet. for Rehearing at
The State next asserts our decision overly limits the search incident to an
arrest exception, id. at 5. One well-recognized exception to the warrant requirement
is a search incident to a lawful arrest. Hollowell v. State, 753
N.E.2d 612, 615 (Ind. 2001). We determined Edwards was not subjected to
a valid search incident to an arrest because the search extended beyond the
area under Edwards immediate control. 762 N.E.2d at 135. We relied
on Gibson v. State, 733 N.E.2d 945 (Ind. Ct. App. 2000), where we
noted that the scope of a search incident to a valid arrest is
generally limited to a search of the person of the arrestee and the
area within his immediate control to which he could reach for weapons or
to destroy evidence. Id. at 954, citing Chimel v. California, 395 U.S.
752, 766 (1969), rehg denied 396 U.S. 869 (1969).
The State concedes that a traditional rationale for the search incident to arrest
exception was to protect police officers by allowing them to remove weapons the
arrestee might seek to use. However, the State asserts, It is not
true . . . to say that only those areas in the suspects
[sic] immediately [sic] control may be search [sic]. (Pet. for Rehearing at
In Gibson, we determined the search of Gibson's van exceeded the permissible scope
of the search incident to an arrest exception of the warrant requirement.
Gibson was arrested outside of his vehicle as he walked toward the entrance
of a convenience store. The contraband police seized was not on Gibson's
person nor was it within the area of his immediate control. Rather,
it was in the interior of his van. Therefore, the permissible scope
of the search incident to Gibson's arrest was limited to his person because
he was stopped and arrested in the parking lot of a convenience store
and not his vehicle. Id.
We distinguished in Gibson those decisions on which the State relies in its
petition such as Jackson v. State, 597 N.E.2d 950, 957 (Ind. 1992), rehg
denied, cert. denied 507 U.S. 976 (1993). We noted that if the
police had stopped Gibson while he was in his vehicle and later subjected
Gibson to a lawful custodial arrest, the police might be justified in searching
the interior of the automobile within Gibson's immediate control if the search was
conducted contemporaneously with the arrest. Gibson, 733 N.E.2d at 955. We
further acknowledged in Gibson the Jackson holding that under those circumstances, it is
of no moment that such a search occurs after the occupant has been
removed from the vehicle and the vehicle is therefore no longer in an
area under his control. Id., citing Jackson, 597 N.E.2d at 957.
In its petition for rehearing, the State does not distinguish, or even acknowledge,
the Gibson decision on which we relied in Edwards. Nor does it
acknowledge the factual and legal distinction Gibson explicitly recognized between persons who are
arrested while in a vehicle or in the process of exiting the vehicle
and persons who are arrested when they are outside the vehicle. As
both Edwards and Gibson were arrested outside their respective vehicles, we decline the
States invitation to apply to the Edwards arrest those decisions that involve a
person who is arrested inside a vehicle. We accordingly reaffirm the reasoning
and result of our decision in Edwards.
SULLIVAN, J., and BARNES, J., concur.
Edwards also petitioned for rehearing. We deny that petition without opinion.
Footnote: We note that our
Edwards opinion indicates NAJAM, J., and BAKER, J.,
concur. 762 N.E.2d at 137. In fact, the Edwards panel was
composed of Judge Mattingly-May, the writing judge, and Judges Barnes and Sullivan, who
It appears the discovery of the bag containing cigarettes is more correctly
analyzed as governed by the open view concept rather than by the plain
view doctrine. We recently addressed the distinction in
Justice v. State, 765
N.E.2d 161, 164-65 (Ind. Ct. App. 2002), citing 16 William Andrew Kerr, Indiana
Practice § 2.2 (1991):
The phrase plain view is often used when open view may be a
more appropriate term with regard to the admissibility of evidence. The plain
view doctrine is recognized as an exception to the search warrant requirement.
The concept of "plain view" is used when an officer is making a
lawful search in a constitutionally protected area and discovers an item in plain
view. Generally, items observed in plain view are not considered the product
of the search. Thus, the plain view exception is addressed to concerns
implicated by the seizure of items. To justify a warrantless seizure under
the plain view doctrine, a law enforcement officer must not have violated the
Fourth Amendment in arriving at the place where items are in plain view,
the incriminating character of the items must be immediately apparent, and the officer
must have a lawful right of access to the items in plain view.
If such requirements are met, the items discovered in plain view may
be seized without a warrant. Often confused with the plain view doctrine
is the concept of open view, which is used in situations in which
a law enforcement officer sees contraband from an area that is not constitutionally
protected, but rather is in a place where the officer is lawfully entitled
to be. In such situations, anything that is within open view may
be observed without having to obtain a search warrant because making such open
view observations do not constitute a search in the constitutional sense. Nonetheless, in
order to lawfully seize items in open view, it may be necessary to
obtain a search warrant or be able to justify a warrantless seizure under
an exception to the warrant requirement.
(Citations omitted.) The State does not address in its petition for rehearing
this distinction or its implications.